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8.111 Attempted Murder

8.111 ATTEMPTED MURDER (18 U.S.C. § 1113)

The defendant is charged in [Count __________ of] the indictment with attempted murder in violation of Section 1113 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant did something that was a substantial step toward killing [name of intended victim];

Second, when the defendant took that substantial step, the defendant intended to kill [name of intended victim]; and

Third,the attempted killing occurred at [specify place of federal jurisdiction].

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

Comment

See Braxton v. United States, 500 U.S. 344, n.351 (1991) ("Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.") (citations omitted). Although one acting "recklessly with extreme disregard for human life" can be convicted of murder if a killing results (see Instruction 8.107 (Murder–First Degree) and 8.108 (Murder–Second Degree)), that same recklessness cannot support a conviction of attempted murder if, fortuitously, no one is killed. See United States v. Kwong, 14 F.3d 189, 194-95 (2nd Cir.1994) (under 18 U.S.C. § 1113, attempted murder conviction requires proof of specific intent to kill; recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that defendant was aware of the serious risk of death, would not suffice as proof of an intent to kill).

"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir.2003) (conviction under 8 U.S.C. § 1326 of deported alien attempting reentry to U.S. without consent).

"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir.2007). Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).